EUREFAS position paper : Proposal for a directive on liability for defective products

Eurefas gathers the environment-focused players in high tech and electronics refurbishment throughout Europe. It aims at supporting the development of a fully fledged European market for repair and refurbished goods, sharing their expertise with public authorities and policy makers, and promoting environmentally friendly and socially beneficial products by raising consumers’ awareness.

We welcome the Commission’s ambition to provide a fair system for compensating people who suffer physical injury or damage to property due to defective products. We also applaud Europe’s aims to adapt this directive to new types of economic operators selling or dealing with second-hand products, such as refurbishers or remanufacturers.

Refurbishment consists in the selling of a second-hand product by a professional offering warranty on its functionalities to consumers. Concretely, a refurbisher tests a product’s functionalities, and, if needed, performs a simple repair. In this case, it doesn’t lead to a substantial modification of the product as refurbishers only return it to a condition where it fulfills its intended use. In most cases, as products are fully functional, refurbishment is limited to testing, cleaning and reselling.

That being said, we welcome the new share of responsibility proposed in the Product Liability revision between manufacturers and any economic operator that makes a substantial modification (substantial modifier). Indeed, remanufacturing - meaning modifying the purpose or nature of a used product - is also an activity important to circular economy. Even if it involves substantial changes to products, it needs to be taken into account in a balanced way in the new liability regime established by the directive. Exempting substantial modifiers from liability when they can prove a damage is related to a part of the product not affected by the modification is thus very important.

We suggest further clarifying this balanced responsibility to avoid a full manufacturer's liability exemption in case non compliance with european standards, such as reparability requirements, that led partially or totally to a substantial modification. A non-compliant and therefore less repairable device creates the risk of substantial modification by refurbishers . They are not always able to detect such non-compliance, or their work is made much more difficult (more numerous and more difficult actions, use of more complex tools when a repair is performed…), thus increasing the risk of creating a default. In this case, the PLD should ensure that the manufacturer can be held responsible for the defectiveness of such a part. We thus recommend the creation of a right of redress for any substantial modifier independent from the original manufacturer, meaning it would be entitled to pursue remedies against the economic operator liable of part’s non-compliance.

We also pledge for applying this balanced responsibility between manufacturers and substantial modifiers in the case of a second-hand product imported by an economic operator independent from the original manufacturer.

As an importer is considered a manufacturer in regards to EU law, whether the product is new or second-hand, refurbishers would be held liable of any default from an imported product causing a damage to a consumer, whether or not it has been substantially modified. We thus recommend applying the same liability to second hand importers as the one of distributors stated in articles 7.5. In this scenario, second hand importers would have one month to identify the manufacturer (or its authorized representative) upon consumer’s request, if:

• such a manufacturer - which sold the product outside the EU - is also based or represented in the UE, and;
• a similar product (same model for a smartphone for example) is sold in the EU by the original manufacturer.

As consumers need to be protected in any case, if the importer of a second-hand product fails in identifying a manufacturer present in the EU, it would be held responsible for damage caused by the defective product.